Alston and Another v Marine & Trade Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Hiemstra J
• Judgment Date: 30 June 1964
• Citation: 1964 (4) SA 112 (W)
• Hearing Date: 05 June 1964
• Court: Witwatersrand Local Division

Hiemstra, J.:

Eating cheese can be dangerous to life. This is a recent discovery by medical science. The plaintiff in this matter has helped to confirm it, at a cost which he now wants to recover from the defendant insurance company.

A The patient is rendered vulnerable to cheese when he takes a drug called parstellin. This drug is an effective and recognised cure for manic depression, and when not combined with certain foodstuffs, notably cheese, it has no harmful side-effects.

The plaintiff suffered from such moods of depression, and it is common cause that they were brought on by a brain injury suffered by him in a B road accident. It is also common cause that defendant, as insurer of the relevant car against third party risk, is liable for damage resulting from the accident. The parties have agreed on the facts and have submitted to the Court the one outstanding issue between them, namely, remoteness of damage.

C The plaintiff did not die as reportedly some other similarly placed patients have done, but suffered a stroke directly attributable to the fact that he was treated with parstellin and then partook of cheese. It was agreed that if the stroke can in law be regarded as a consequence of the accident, he is to receive R900 in addition to a sum of R2,000 for other injuries which are not in dispute.

D The administration of parstellin was also agreed to have taken place without negligence on the part of plaintiff's medical advisers, and thus the stage was set for a discourse on causality: Was there a causal link between the accident and the stroke so as to render the stroke compensable in law?

E Hardly any reference to causality can be found in the old authorities, but there is a vast mass of modern learning on the subject. For the sake of clarity only a selection therefrom can be mentioned.

It is useful to observe that causality can arise in three fields, namely, crime, delict and contract, and that slightly different considerations apply. In crime the enquiry into guilt will surround only the criminal act and not the subsequent chain of consequences for the F victim. This holds good also where the victim of an assault dies much later. The enquiry will still not go beyond the cause of death. In delict the enquiry can extend far beyond the injury into the subsequent vicissitudes of the victim. A cause which in the criminal trial may have G seemed dominant, can now in course of time be diluted by new forces, leading to new and unexpected syndromes. The question of compensation becomes beset by complicating features. And so various schools of thought have arisen in this field, of which two are dominant, namely, the 'foreseeability' school and the 'direct consequences' school. In H contract, on the other hand, foreseeability of damage holds uncontested sway. The difference is not surprising, because the law of contract is concerned with duties fundamentally different from those in the law of delict. Prof. McKerron (in 1961 S. A. L. J. at p. 228) suggests that the difference lies in the fact that the duties in contract are self-imposed whereaS those with which the law of delict is concerned are imposed by established rules of law. He says that both logic and justice would seem to require that liability for breach of contract should be limited to such consequences of the breach as the defendant at the time of the

Hiemstra J

contract could reasonably have foreseen. He accepts no such limitation in delict, despite weighty authority to the contrary.

This matter concerns a delict, and in our case law no decisive choice A has yet been made between the various approaches to causality, probably because in many cases either method would give the same result.

For a review of Continental learning on the subject I am indebted to an article by Prof. L. C. de Wet in Tydskrif...